Sentencing Right To Make Recommendations - The Expansion Of Prosecutorial Power And Regulation

Conviction and sentencing are the two main elements of criminal justice. Since the tradition that "re-conviction, light sentencing" prevails for a long time in China, we never attach enough importance to the sentencing as it deserves. For its unique values, sentencing proposal has been applied in some grass-roots courts in this decade, as part of Chinese judicial reformation. However, series of problems about sentencing proposal have turned up in our judicial practice, one of which is that it can not be normalized.Having studied the problems exposed in the judicial practice, the author has given her own suggestions in sentencing proposal construction by foreign comparison and legal analysis.This article is composed of four parts.The first part sets forth the concept and function of sentencing proposal by comparing with several other related concepts, such as seek criminal rights, right of public prosecution, sentencing judges. As a part of the right of public prosecution, sentencing proposal is a narrow right to demand punishment. Different from the right of sentencing judges, it is prosecutorial power. Sentencing proposal functions to keep efficiency and justice and regulates the judges'discretion.The second part has pointed out the similarities and differences of countries'proposal system by introducing the rule of sentencing proposal in both common law system and civil law system.The third part analyzes the feasibility of sentencing proposal in both law and legal system. Although there is not an explicit definition about sentencing proposal in law, similar powers have been mentioned frequently by Chinese Criminal Procedure law and other related laws. Meanwhile, the sentencing proposal, consistent with principles of criminal structures, is the essential elements to complete prosecution claims.Combining foreign advanced experiences and our unique litigation system together, the fourth part gives the suggestions on Chinese sentencing proposal construction, including type, scope, proposed subject, time and procedures. Meanwhile, this paper also establishes some auxiliary systems, such as instructing the reasons not to adopt the sentencing proposal system, discovery system, and Chief prosecutor accountability system, protecting the right of sentencing proposal and regulating it. They also ensure the sentencing proposal system is properly implemented.